Sanders: Mosby's Paramedic Textbook, Revised 3 Edition ...brainspew.com/advanced/medic/slides/Chapter_004.pdf · Sanders: Mosby's Paramedic Textbook, Revised 3rd Edition ... 1994

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Chapter 4Chapter 4Medical/Legal IssuesMedical/Legal Issues

Copyright © 2007, 2006, 2001, 1994 by Mosby, Inc., an affiliate of Elsevier Inc.

ObjectivesObjectivesDescribe structure of legal systemDescribe structure of legal system

Relate how laws affect paramedic practiceRelate how laws affect paramedic practice

List situations paramedic must reportList situations paramedic must report

List four elements of negligenceList four elements of negligence

Describe how paramedics can protect themselves Describe how paramedics can protect themselves from claims of negligencefrom claims of negligence


ObjectivesObjectivesDefine the paramedicDefine the paramedic’’s responsibility to protect s responsibility to protect patient confidentiality responsibilitiespatient confidentiality responsibilities

Outline the process for obtaining consentOutline the process for obtaining consent

Describe legal complications related to consentDescribe legal complications related to consent

Describe actions in refusal of care situationDescribe actions in refusal of care situation

Describe legal considerations regarding patient Describe legal considerations regarding patient transportationtransportation


Mosby, Inc. items and derived items © 2007, 2006 by Mosby, Inc., an affiliate of Elsevier Inc.

Sanders: Mosby's Paramedic Textbook, Revised 3rd Edition PowerPoint Lecture Notes

Chapter 4: Medical/Legal Issues

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ObjectivesObjectivesOutline legal issues related to resuscitationOutline legal issues related to resuscitation

List measures to preserve evidenceList measures to preserve evidence

Detail the components of narrative Detail the components of narrative documentationdocumentation

Define medicalDefine medical--legal terms related to EMSlegal terms related to EMS


ScenarioScenario

Your preceptor doesnYour preceptor doesn’’t flinch when the alert t flinch when the alert patient with chest pain says he doesnpatient with chest pain says he doesn’’t want t want to go to the hospital. He tells him, to go to the hospital. He tells him, ““You have You have no choice,no choice,”” and then forcibly transports him. and then forcibly transports him. During the struggle, the patientDuring the struggle, the patient’’s condition s condition worsens and he suffers a serious heart worsens and he suffers a serious heart attack.attack.


DiscussionDiscussionDoes this call meet any of the elements needed to prove Does this call meet any of the elements needed to prove negligence?negligence?

What type of consent should have been obtained on this What type of consent should have been obtained on this call?call?

Should this patient have been transported against his Should this patient have been transported against his wishes?wishes?

What criminal or civil laws may relate to this situation?What criminal or civil laws may relate to this situation?



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ParamedicParamedic’’s Legal Dutiess Legal DutiesPatientPatient

EmployerEmployer

Medical directorMedical director

PublicPublic

Statutes and regulationsStatutes and regulations

Accepted medical standardsAccepted medical standards


Ethical ResponsibilitiesEthical ResponsibilitiesRespect for patientRespect for patient’’s physical and emotional needss physical and emotional needsMastery of skillsMastery of skillsContinuing educationContinuing educationReviewing performance Reviewing performance Reporting honestlyReporting honestlyRespecting confidentialityRespecting confidentialityWorking cooperatively with other professionalsWorking cooperatively with other professionalsStaying current with new concepts and modalitiesStaying current with new concepts and modalities


Legal and Ethical ResponsibilitiesLegal and Ethical Responsibilities

Civil or criminal liabilityCivil or criminal liability

Best legal protection:Best legal protection:Appropriate assessment and careAppropriate assessment and careAccurate and complete documentationAccurate and complete documentation

Laws differ from state to stateLaws differ from state to stateGet competent legal adviceGet competent legal advice



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Types of LawTypes of LawLegislative lawLegislative law

Administrative lawAdministrative law

Common lawCommon law

Criminal lawCriminal law

Civil lawCivil law


Legislative LawLegislative Law

Made by legislative branches of governmentMade by legislative branches of government

Statutes, constitutionsStatutes, constitutionsCity councilsCity councilsDistrict boardsDistrict boardsGeneral assembliesGeneral assembliesU.S. CongressU.S. Congress


Administrative LawAdministrative Law

Regulations developed by a governmental Regulations developed by a governmental agency to provide details about the function agency to provide details about the function and process of the lawand process of the law

General requirements for paramedic licensureGeneral requirements for paramedic licensure

Regulatory agencies may revoke or suspend Regulatory agencies may revoke or suspend licenselicense



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Common LawCommon LawCase or judgeCase or judge--made lawmade law

Derived from customs or norms over timeDerived from customs or norms over time

Based on decisions of state/federal judicial systemsBased on decisions of state/federal judicial systems

Court decisions may defineCourt decisions may defineAcceptable conductAcceptable conductNegligenceNegligenceInterpretation of EMS statutes and regulationsInterpretation of EMS statutes and regulations


Criminal LawCriminal LawGovernment prosecutes person for violating Government prosecutes person for violating laws designed to protect societylaws designed to protect society

Public complaintPublic complaint

Punishment by fine, imprisonment, or bothPunishment by fine, imprisonment, or both


Civil (Tort) LawCivil (Tort) Law

Private complaints brought against a Private complaints brought against a defendant for illegal act/wrongdoing defendant for illegal act/wrongdoing

Plaintiff requests court to award damagesPlaintiff requests court to award damages



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How Laws Affect the ParamedicHow Laws Affect the ParamedicScope of practiceScope of practice

Duties/skills paramedic is allowed to performDuties/skills paramedic is allowed to performDictated by state law or regulationDictated by state law or regulation

Medical directionMedical directionOnOn--line or offline or off--lineline

Medical practice actMedical practice actLegislation governing practiceLegislation governing practice

Licensure/certificationLicensure/certification


Motor Vehicle LawsMotor Vehicle LawsStandards for equipping and operating Standards for equipping and operating emergency vehiclesemergency vehicles

Vary by stateVary by state

State codes regardingState codes regardingReckless drivingReckless drivingExcessive speedsExcessive speedsFailure to consider road and weather conditionsFailure to consider road and weather conditionsInappropriate use/nonuse of sirens and lightsInappropriate use/nonuse of sirens and lights


Mandatory Reporting RequirementsMandatory Reporting RequirementsChild abuse and neglectChild abuse and neglectElder abuseElder abuseSpouse abuseSpouse abuseSexual assaultSexual assaultGunshot and stab woundsGunshot and stab woundsAnimal bitesAnimal bitesSome communicable diseasesSome communicable diseases



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Protection for the ParamedicProtection for the ParamedicInfectious disease exposure notificationInfectious disease exposure notification

Ryan White Comprehensive AIDS Resources Ryan White Comprehensive AIDS Resources Emergency Act of 1990Emergency Act of 1990

Immunity statutesImmunity statutesGovernmental immunityGovernmental immunityGood Samaritan lawsGood Samaritan laws


Protection for the ParamedicProtection for the ParamedicIn some areasIn some areas

Illegal to harm EMS providers or obstruct careIllegal to harm EMS providers or obstruct care

Best to avoid unsafe scenesBest to avoid unsafe scenes


Anatomy of an Injury LawsuitAnatomy of an Injury Lawsuit



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Anatomy of an Injury LawsuitAnatomy of an Injury Lawsuit


Legal AccountabilityLegal Accountability——ParamedicParamedic

Act in reasonable and prudent mannerAct in reasonable and prudent manner

Provide level of care consistent with Provide level of care consistent with education and local protocoleducation and local protocol

Failure to meet these responsibilities can Failure to meet these responsibilities can result in legal liabilityresult in legal liability


NegligenceNegligence

The failure to act as a reasonable, prudent The failure to act as a reasonable, prudent paramedic would act in similar paramedic would act in similar

circumstancescircumstances



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Components of NegligenceComponents of Negligence

Four elements needed to prove negligence Four elements needed to prove negligence exists:exists:

Duty to actDuty to actBreach of dutyBreach of dutyDamagesDamagesProximate cause Proximate cause


Defenses to Negligence ClaimsDefenses to Negligence Claims

TrainingTrainingCompetent patient care skillsCompetent patient care skillsThorough documentation of patient care Thorough documentation of patient care Good Samaritan lawsGood Samaritan laws

Limited protection for EMSLimited protection for EMS


Defenses to Negligence ClaimsDefenses to Negligence Claims

Governmental immunityGovernmental immunityVariableVariable

Statute of limitationsStatute of limitationsDifferent for adults/childrenDifferent for adults/children

Contributory negligenceContributory negligenceMay affect size of awardMay affect size of award



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Liability InsuranceLiability InsuranceCovers legal defense and judgmentsCovers legal defense and judgments

Primary policyPrimary policy

Umbrella policyUmbrella policy

Individual coverageIndividual coverage


Special Liability ConcernsSpecial Liability ConcernsMedical directorMedical director

OnOn--linelineOffOff--lineline

Liability for Liability for ““borrowed servantsborrowed servants””

Considerations for issues relating to civil Considerations for issues relating to civil rightsrights


Civil RightsCivil RightsCOBRA/EMTALA 1986: May not discriminate by COBRA/EMTALA 1986: May not discriminate by reason of race, color, gender, national origin, or, reason of race, color, gender, national origin, or, in some cases, ability to payin some cases, ability to pay

Rehabilitation Act of 1973: May not discriminate Rehabilitation Act of 1973: May not discriminate based on a handicap based on a handicap

Title II of the Americans with Disabilities Act: Title II of the Americans with Disabilities Act: Guarantees equal accessibilityGuarantees equal accessibility



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Protection Against Negligence ClaimsProtection Against Negligence Claims

Education/training/CE and skill retentionEducation/training/CE and skill retention

Appropriate quality improvementAppropriate quality improvement

Appropriate medical directionAppropriate medical direction

Accurate, thorough documentationAccurate, thorough documentation

Professional attitude and demeanorProfessional attitude and demeanor


ConfidentialityConfidentiality——HIPAAHIPAAConfidential informationConfidential information

Patient historyPatient historyAssessment findingsAssessment findingsTreatment renderedTreatment rendered

Information may be used forInformation may be used forTreatmentTreatmentPaymentPaymentOperationsOperations


ConfidentialityConfidentialityRelease of informationRelease of information

Requires written permissionRequires written permission

Legal exceptionsLegal exceptions

Improper release of information or release of Improper release of information or release of inaccurate information can result in liabilityinaccurate information can result in liability

Invasion of privacyInvasion of privacyDefamationDefamation

•• LibelLibel•• SlanderSlander



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ConsentConsent

Conscious, competent patients have the right Conscious, competent patients have the right to decide what medical care and to decide what medical care and transportation to accepttransportation to accept

Must be of legal age Must be of legal age


ConsentConsentMust inform patient ofMust inform patient of

Nature of illness or injuryNature of illness or injuryTreatment recommendedTreatment recommendedRisks and dangers of treatmentRisks and dangers of treatmentAlternative treatments possibleAlternative treatments possibleDangers of refusing treatment/transportDangers of refusing treatment/transport

Conscious, competent patient can revoke Conscious, competent patient can revoke consent at any time consent at any time


ConsentConsentInformed consentInformed consent

Based on full information disclosureBased on full information disclosure

Expressed consentExpressed consentWritten or verbalWritten or verbal

Implied consentImplied consentPresumed due to conditionPresumed due to condition

Involuntary consentInvoluntary consentBy authority of lawBy authority of law



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Special Consent SituationsSpecial Consent Situations

MinorsMinors

Mentally incompetent adultsMentally incompetent adults

Prisoners or arresteesPrisoners or arrestees

Refusal of care or transportRefusal of care or transport


MinorsMinors

Usually 18, unless emancipatedUsually 18, unless emancipated

Unemancipated minors canUnemancipated minors can’’t give or withhold t give or withhold consentconsent

Consent by parent, legal guardian, or courtConsent by parent, legal guardian, or court--appointed custodian appointed custodian Emergency doctrine applies when parent or Emergency doctrine applies when parent or guardian cannot be contactedguardian cannot be contacted

•• Thoroughly document nature of emergencyThoroughly document nature of emergency


Mentally Incompetent AdultsMentally Incompetent Adults

Legal guardian may give or withhold consentLegal guardian may give or withhold consent

Emergency doctrine is used if legal guardian Emergency doctrine is used if legal guardian cancan’’t be contactedt be contacted

Contact medical directionContact medical direction



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Prisoners or ArresteesPrisoners or Arrestees

As a rule, incarceration does not deny a As a rule, incarceration does not deny a personperson’’s right to decide about medical s right to decide about medical treatment.treatment.

If limbIf limb-- or lifeor life--threatening injury present, court threatening injury present, court or police who have custody may authorize or police who have custody may authorize emergency treatment (in some cases)emergency treatment (in some cases)


Refusal of Care or TransportRefusal of Care or Transport

Must be able to make a reasonable decisionMust be able to make a reasonable decision

Make multiple attempts to have patient Make multiple attempts to have patient accept careaccept care

Have others try to convince patientHave others try to convince patient

Make risks of refusal clearMake risks of refusal clear


Advise that patient may call againAdvise that patient may call again

Try to get someone to stay with patientTry to get someone to stay with patient

Consult medical directionConsult medical direction

Document thoroughlyDocument thoroughly

““Release from liability" formRelease from liability" form

Refusal of Care or TransportRefusal of Care or Transport



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Legal Complications Related to ConsentLegal Complications Related to Consent

AbandonmentAbandonment

False imprisonmentFalse imprisonment

Assault Assault

BatteryBattery


AbandonmentAbandonment

Terminating care needed by patient without Terminating care needed by patient without ensuring that care is provided by another ensuring that care is provided by another qualified providerqualified provider

May occur in the field or when a patient is May occur in the field or when a patient is delivered to emergency departmentdelivered to emergency department


False ImprisonmentFalse Imprisonment

Intentional or unjustifiable detention of a Intentional or unjustifiable detention of a personperson

Transport without consentTransport without consentRestraint without proper cause or authorityRestraint without proper cause or authority

May be a civil or criminal violationMay be a civil or criminal violation



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Assault/BatteryAssault/Battery

AssaultAssaultThreatening, attempting, or causing fear of Threatening, attempting, or causing fear of offensive physical contact offensive physical contact

BatteryBatteryUnlawful touching without consentUnlawful touching without consent


Use of ForceUse of ForceUse of restraints or Use of restraints or ““reasonablereasonable”” forceforce

Unruly or violent patientsUnruly or violent patients

Involve law enforcement if possibleInvolve law enforcement if possible

Be humane Be humane

Never punitive in natureNever punitive in nature


Transportation of PatientsTransportation of Patients

Care must be continued untilCare must be continued untilPatient is transferred to appropriate personnelPatient is transferred to appropriate personnelPatient no longer requires carePatient no longer requires carePatient terminates relationshipPatient terminates relationship



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Emergency Vehicle Operating PrivilegesEmergency Vehicle Operating Privileges

““RightRight--ofof--wayway”” privilegesprivilegesTravel slightly faster than the posted speed limit Travel slightly faster than the posted speed limit (usually no more than 10 mph)(usually no more than 10 mph)Move safely from one lane into opposing trafficMove safely from one lane into opposing trafficSafely travel through redSafely travel through red--light intersectionslight intersectionsAppropriately use audible and visual warning Appropriately use audible and visual warning devicesdevicesPark in unauthorized areasPark in unauthorized areas


Choice of Patient DestinationChoice of Patient DestinationBased on patient needs and hospital Based on patient needs and hospital capabilitycapability

Protocols for hospital selectionProtocols for hospital selection

Involve medical direction when patientInvolve medical direction when patient’’s s choice cannot be honoredchoice cannot be honored


Payer ProtocolsPayer ProtocolsParamedics need basic understanding of Paramedics need basic understanding of reimbursement programs to help patients reimbursement programs to help patients determine what services are likely to be determine what services are likely to be covered by their insurance policiescovered by their insurance policies

In lifeIn life--threatening emergencies, payer threatening emergencies, payer protocols should not be a factorprotocols should not be a factor

Document patient care thoroughlyDocument patient care thoroughly



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Resuscitation IssuesResuscitation IssuesWithholding or stopping resuscitationWithholding or stopping resuscitation

Obvious signs of irreversible death Obvious signs of irreversible death Resuscitation would place the EMS provider at Resuscitation would place the EMS provider at risk of personal injuryrisk of personal injuryPatient or surrogate has indicated resuscitation is Patient or surrogate has indicated resuscitation is not desirednot desiredEstablished by local protocolsEstablished by local protocolsRole of medical direction should be clearly Role of medical direction should be clearly delineateddelineated


Resuscitation TerminationResuscitation Termination

When patient cannot be resuscitated after When patient cannot be resuscitated after adequate trial of BLS and ACLS:adequate trial of BLS and ACLS:

Airway successfully securedAirway successfully securedIV access establishedIV access establishedAppropriate drugs and shocks givenAppropriate drugs and shocks givenPersistent asystole or agonal rhythmPersistent asystole or agonal rhythmNo reversible cause identifiedNo reversible cause identified


Advance DirectivesAdvance DirectivesPatient SelfPatient Self--Determination ActDetermination Act

State laws and local protocolsState laws and local protocols

Written patient statementsWritten patient statementsLiving willLiving willDurable power of attorney for health Durable power of attorney for health carecareDo not resuscitate (DNR) ordersDo not resuscitate (DNR) orders

Medical direction policies Medical direction policies



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Potential Organ DonationPotential Organ DonationIdentify potential donorIdentify potential donor

Notify medical directionNotify medical direction

Care to help maintain viable organsCare to help maintain viable organsAirway managementAirway managementFluid resuscitation to maintain perfusionFluid resuscitation to maintain perfusionEye careEye care

Careful documentationCareful documentation


Death in the FieldDeath in the FieldDetermined byDetermined by

No spontaneous cardiac electrical activity (confirmed No spontaneous cardiac electrical activity (confirmed by ECG in two leads)by ECG in two leads)No spontaneous respirationsNo spontaneous respirationsAbsent cough and gag reflexAbsent cough and gag reflexNo spontaneous movementNo spontaneous movementNo response to painful stimuliNo response to painful stimuliFixed and midpoint pupilsFixed and midpoint pupilsDependent lividityDependent lividityRigor mortisRigor mortis


Death in the FieldDeath in the FieldParamedic shouldParamedic should

Contact medical direction for guidanceContact medical direction for guidanceFollow protocolsFollow protocolsDocument observations or unusual findingsDocument observations or unusual findingsNotify appropriate authorities Notify appropriate authorities Disturb the scene as little as possibleDisturb the scene as little as possibleProvide emotional supportProvide emotional support



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Crime Scene ResponsibilitiesCrime Scene ResponsibilitiesProtect self and other EMS personnelProtect self and other EMS personnel

Patient carePatient care

Notify law enforcement Notify law enforcement

Document unusual findingsDocument unusual findings

Protect potential evidenceProtect potential evidence


DocumentationDocumentation

If it is not written down, it was not doneIf it is not written down, it was not done

Memory is fallibleMemory is fallible•• Claims may not be filed until years after an Claims may not be filed until years after an

eventevent


Effective Patient Care ReportEffective Patient Care ReportCompletedCompleted

PromptlyPromptlyThoroughlyThoroughlyObjectivelyObjectivelyAccuratelyAccurately

Confidentiality maintainedConfidentiality maintained

Copy is part of patient's hospital recordCopy is part of patient's hospital record

Maintain for extent of statute of limitationsMaintain for extent of statute of limitations



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ConclusionConclusion

To safeguard against litigation, the To safeguard against litigation, the paramedic must be knowledgeable about paramedic must be knowledgeable about

legal issues and the effects they may have.legal issues and the effects they may have.


Questions?Questions?



Documents

Sanders: Mosby's Paramedic Textbook, Revised 3 Edition ...brainspew.com/advanced/medic/slides/Chapter_004.pdf · Sanders: Mosby's Paramedic Textbook, Revised 3rd Edition ... 1994